On Jan. 15, the Supreme Court of Canada will decide whether the nomination of Justice Marc Nadon was legal. Until then, he is banned from the court and not giving interviews. (Adrian Wyld/The Canadian Press, photo illustration The Globe and Mail)

On Jan. 15, the Supreme Court of Canada will decide whether the nomination of Justice Marc Nadon was legal. Until then, he is banned from the court and not giving interviews.(Adrian Wyld/The Canadian Press, photo illustration The Globe and Mail)

What Justice Nadon’s appointment says about the Supreme Court’s future
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His age plus his 18 years in the Federal Court’s trial and appeal divisions added up to 80 – allowing him the option to work about half his usual hours and still receive his full pay of $288,100. An option he took. To mark the transition, he took four weeks off for a southern holiday, then returned to a lightened workload.

Justice Richard Wagner
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But his break wasn’t to last. This fall, Prime Minister Stephen Harper appointed Justice Nadon to the Supreme Court of Canada – not only ending his career’s twilight but putting him into what is turning out to be a glaring spotlight. Instead of the usual praise for such appointments, the legal community reponded with shock, and vocal displeasure.

Even Frederick Vaughan, co-author of the seminal book The Supreme Court: History of the Institution, found the appointment baffling. No judge, he says, had ever been appointed to the Supreme Court from what is known as supernumerary – semi-retired – status.

“It’s a strange, strange appointment, frankly,” he says. “Why would you go with a supernumerary when he’s indicated that he’s halfway to retirement?”

But it wasn’t just his part-time status that raised questions.

Justice Nadon’s specialty, maritime law, is hardly of prime importance to the Supreme Court. His record of judgments is seen in legal circles as not terribly distinguished. He has had little connection in the past 20 years to the province he was appointed from – Quebec. He isn’t a she (the court’s complement of women had dropped from four to three).

His appointment is also of questionable legal merit.

On Jan. 15, the same court that Justice Nadon was appointed to will hold an unprecendented hearing on whether a Federal Court of Appeal judge can qualify for one of the three spots reserved for Quebec on the Supreme Court. The hearing comes after a Toronto lawyer and the Quebec government made separate challenges to the appointment.

So did the prime minister make a mistake in choosing Justice Nadon? Or does his choice say something about the Conservative government’s plan for the country’s most influential court?

Court watchers point to a crucial clue – Justice Nadon’s stance on the case of teenage terrorist Omar Khadr.

At a time when other judges are beginning to rebel against the government’s overhaul of criminal law, the Khadr ruling marked the then-unheralded 64-year-old as a voice for keeping judges in their place.

A judiciary in revolt

Mr. Harper had no shortage of judges from the Quebec Court of Appeal to choose from. They included at least two judges with star power, Marie-France Bich and Nicholas Kasirer, both of them regarded as scholarly centrists.

“[Mr.] Nadon was on nobody’s short list – he wasn’t on anybody’s long list as far as I know,” McGill University law professor Robert Leckey says.

But like any prime minister, Mr. Harper has the prerogative to shape the bench as he sees fit. And in a year-end interview with the media, he repeated his long-touted goal – to transform criminal law so that it is no longer “centred on the welfare of the criminal.”

This tough-on-crime approach is a central, and popular, part of Mr. Harper’s political agenda. It’s behind sweeping changes to the Criminal Code that have put more people in federal prisons than ever before. It’s also behind his vision for the bench.

That’s because the wrong sorts of judges could block Mr. Harper. And the judiciary has been doing just that.

Two years ago, when the Conservative government tried to close Insite, a Vancouver clinic where addicts injected illegal drugs under a nurse’s supervision, the Supreme Court ruled that the government couldn’t close the clinic – by a resounding 9-0 vote.

Later this month, the Supreme Court will hear three separate cases in which judges gave convicted criminals 1.5 days of credit for every day served in jail before conviction. The Truth in Sentencing Act abolished the previous practice of two days credit for every day served. Judges were not supposed to give extra credit in most cases.